Mary Bishop & Another v. M.

• Decision Date: 01 January 1870
• Citation: 34 Tex. 245
• Parties: MARY BISHOP AND ANOTHER v. M. V. HONEY.
• Court: Texas Supreme Court

34 Tex. 245

MARY BISHOP AND ANOTHER

v.M. V. HONEY.

Supreme Court of Texas.

1870.

1. A plea of coverture, interposed to a petition on a contract, is a plea in abatement of the writ, and must, therefore, be verified by oath.

2. To an action on a written contract the defendant pleaded that fraud was practiced upon her by her own attorney, in substituting the contract sued on in place of a prior one between her and the plaintiff. Held, that this plea, being in substance a denial of the contract, was tantamount to a plea of non est factum, and as such it should have been verified by oath.

3. To suit by a mechanic on a building contract, the defendant answered that she had the house built for a house of prostitution, and that plaintiff, when he undertook and erected the house, well knew such to be its destined use, contrary to good morals, etc. Held, that the answer was frivolous--there being no allegation that the plaintiff was to be concerned or interested in the contemplated illegal uses of the building.

4. Pending suit by a mechanic to enforce his statutory lien on a house erected by him for a lessee of a town lot, the landlord of the lessee removed the house to a different lot, claiming the right to take it for rents due him, and because it was a nuisance on the first site, and alleging that his outlays in removing and refitting the house were a certain amount which should be first refunded to him from the proceeds, in preference to any lien of the plaintiff. Held, that the court below correctly disregarded these pretenses of the landlord, who acted lis pendens, and must abide the result of the suit.

APPEAL from Galveston. Tried below before the Hon. George R. Scott. The court states in the opinion such of the facts as it deems material.

I. McLemore & Hume, for the appellants. Even had Bishop contracted as a feme sole, she is not thereby estopped from pleading coverture. Chit. Con. 752; Davenport v. Nilson, 4 Camp. 26.

Bishop's plea of coverture was a plea in bar, and not required to be sworn to. Appellee's exception to that plea should not have been sustained. 1 Chit. Plead. 449, note 6, 477; James v. Fowks, 12 Mod. 101; 2 Bright, Husband and Wife, 40, and 69-75, reviewing the leading cases; Kavanaugh v. Brown, 1 Tex. 481; Nicholson v. Ingram, 24 Tex. 630; Story on Contracts, § 94; Marshall v. Ratton, 8 Tenn. 545; 14 Serg. & R. 379. Her execution of such a contract would be a nullity even in equity. This has been decided directly in cases where notes were made by married women. Goodhue v. Barmence, Rice, Eq. 239; Wilson v. Cheshire, 1 McCord, Ch. 239. See also Story, Eq. Jur. § 1397.

II. Bishop's plea of fraud and a different prior contract was not a plea of non est factum, and should have been sustained. It expressly acknowledges the manual execution of the contract sued on. It is a plea in confession and avoidance. 1 Saunders, Pl. & Ev. 656-7; 1 Chit. Plead. 743; Gardner v. Gardner, 10 Johns. 47;Legg v. Robinson, 7 Wend. 194;Courcier v. Graham, 1 Ohio, 346;Reynolds v. Rogers, 5 Ohio, 172;Brazee v. Blake, 5; Id. 340;Granger v. Granger, 6 Id. 42.

III. The demurrers of defendants should have been sustained; for, first, the petition nowhere alleges that Honey was a “mechanic” of any character. The lien is only given to “master builders or mechanics.” Pas. Dig. arts. 4592-4. Second, appellee sued on a contract, and to foreclose a statutory lien as incidental to that contract, without alleging performance. He was permitted to allege and prove a quantum meruit, and at the same time to foreclose a lien under a contract provided for by statute. His prayer for relief on a quantum meruit is, of itself, an abandonment of the contract and the lien under it, and he could only have been entitled to a general judgment. Pas. Dig. arts. 4592-4; Par. Con. 34-5; O'Connor v. Van Homme, Dallam, 429.

IV. The court erred, first, in instructing the jury that if the contract was proved by plaintiff he was entitled to recover against “defendants” the amount due thereon. Brown was no party to the contract, and under no responsibility to the plaintiff. The only possible judgment that could have reached him in any way, was one in rem against the house for such sum as it was proven to be worth at the time of his alleged conversion of it. No value at that time was proven; and if it had been, the judgment should only have been for that value, to be realized from the house, not from his general estate. Second, the court erred, in the absence of any allegation by plaintiff that he was a mechanic, in making the “thirty days,” record of the contract the only essential condition of his right to a lien. Third, it was error to assume in the charge to the jury that any amount found due plaintiff on the contract was a “debt due him from defendants.” Pas. Dig. art. 1464; 24 Tex. 543;20 Id. 728;9 Id. 502.

V. It was error to charge the jury, that the fact of the house being built for a house of prostitution, and the appellee's knowledge thereof, was no bar to his right of recovery. The contract was contra bonos mores, and void. Pearce v. Brooks, L. R. 1 Exch. 213; Benjamin, Sales, 384, 404, 415; Girardy v. Richardson, 1 Esp. 13; Story, Eq. Jur. § 298, note 3.

It was against public policy. Pas. Dig. arts. 2027-2029; Story, Con. §§ 545-6; Cannon v. Bryce, 3 Barn. & Ald. 179; Benjamin, Sales, 182; Chit. Con. 8 Am. 20, 598, and note 22. 3 Pick. 26-30. VI. Brown was not charged with the debt by appellee's pleadings, and the verdict of the jury granted a relief not asked in finding generally for plaintiff, without specifying in what way the respective defendants should respond. It was too vague and uncertain, and cannot be explained by the record. It should have been set aside, or a new trial granted. The court could not make it the basis of a legal judgment. Claiborne v. Tanner, 18 Tex. 78;Jackson v. The State, 21 Tex. 676;Raines v. Calloway, 27 Tex. 685;Smith v. Jackson, 8 Tex. 424;Mays v. Lewis, 4 Tex. 38;Hawkins v. Lee, 22 Tex. 548;24 Id. 202;1 Id. 57;16 Id. 23.

VII. The judgment of the court is not warranted by, and does not pursue the verdict of the jury. See cases referred to in § 6; 18 Tex. 78;21 Id. 675;27 Id. 685;22 Id. 548;8 Id. 119;13 Id. 333.

VIII. The court erred in directing, that “defendants, or either of them,” should be responsible for the judgment, out of their general estate, in case the house was not surrendered to the sheriff; and in permitting the purchaser to have thirty days to remove the house. Such conditions in a judgment are unprecedented and anomalous; warranted by no law, custom or authority.

N. B. It is claimed by appellee's brief that non est factum is the only proper plea in a case like this (see division 2 supra), and that we could have proved our allegations of fraud and a different contract under that plea. Most of the cases require fraud of every character to be set up specially. None of them go further in a contrary direction than to say, that fraud in the execution of the instrument (at the very time of execution) can be shown under the plea of non est factum; and they all hold that fraud preceding the execution cannot be shown under that plea. In the case at bar one plea alleges combination and fraud by and between appellee and one supposed attorney long before the execution of the instrument. This we could not have proven under non est factum. 6 Mun. 366, and cases there cited; Edwards v. Brown, 1 Tex. 196.

Ballinger, Jack & Mott, for the appellee.

WALKER, J.

This action was brought in the Galveston county court. Honey, the plaintiff below, sued upon a written contract with Bishop, the defendant. It appears from the contract that Honey undertook to build a house for Bishop. She agreed to pay him five hundred dollars on the third day of November, 1867, and a like sum monthly until the payment amounted to $4,500. The contract was recorded in the clerk's office of the county. The mechanic's lien was provided for in the contract between the parties.

It appears that the lot on which the house was to be built belonged to John Brown, but his co-appellant, Mary Bishop, held a lease over it. In answering the plaintiff's action, Bishop, after general demurrer and denial, plead her coverture specially, and further that there was fraud practiced upon her by her own attorney, in substituting the contract sued on for a prior contract between the parties. She averred a failure on the part of the plaintiff to perform his contract, and plead in reconvention that she had paid the plaintiff five hundred dollars in advance, which she prayed might be returned to her. To these pleadings the plaintiff excepted.

By agreement of parties the action was consolidated with two other actions growing out of the same contract, and was transferred to the district court for trial.

The plaintiff subsequently filed an amended petition, in which he alleged that he had performed eight-ninths of the work, and furnished a corresponding amount of material for the house; that he had been compelled to abandon the work for the reason that the defendant had not paid for it under the contract. He claimed four thousand dollars for his work and material, and prayed for a decree foreclosing his lien.

To the amended petition the defendant demurred, and set up substantially the allegations contained in her answer to the original petition. The plaintiff again excepted to the plea of coverture and to the plea of fraud and denial of the contract, also denying the coverture.

On the twenty-fifth day of May, 1869, the plaintiff below filed a petition making John Brown a defendant to the action, averring that in the previous month of April, and during the pendency of the suit, Brown had removed the house from lot No. 1, block No. 27, in the city of Galveston, to another lot belonging to him, without the consent or authority of the plaintiff; that the house was worth $4,000, and was...